Sour Grapes from California

As an attorney, I hate to lose a case. One of the first things I was told when hired as a new associate was that if I only won cases I was “supposed” to win - cases in which the facts and the law were clearly in my favor - I wasn’t much of a lawyer. My job is to win close cases, and when possible, bad cases. My clients hire me for that job, and I owe it to them to take it seriously.

Prosecutors have a different obligation. Their job is not to seek convictions whenever they can get them, but only when a conviction would be “just.” If there is a reason to doubt the guilt of an accused person, our Constitution demands he be set free. The Founders of this Nation, following Blackstone, believed it was better for ten guilty men to go free than for one innocent man to suffer conviction, in order to prevent the conviction of innocents and preserve the moral authority of the criminal justice system.

Of course, we do not allow a prosecutor to determine when a conviction is justified. He has to convince the community at large, as represented by a jury, to agree with him. If the jury thinks the prosecutor is wrong, the accused goes free. Any other system would lead to trial by government - something the Founders thought the most dangerous and arbitrary power imaginable.

To allow a government apparatchik to determine guilt or innocence would leave all the rights of the people at the mercy of their government. To allow the people, acting through juries, to determine the guilt or innocence of an accused leaves the powers of government at the mercy of its citizens. If the citizens do not believe a conviction is justified, legally or morally, the accused is allowed to go free. The job of a juror is to be skeptical, to test the State’s case carefully - and to vote their best conscientious judgment after a thorough review of all the facts, evidence, and arguments before them.

Under this plan, the job of prosecutors is difficult, as it should be. Sometimes they win, sometimes they lose, but they should never win too easily. Whether they win or lose, they should respect the process and the critical role of the jury – or find another line of work.

Some prosecutors, it would appear, have issues with this noble and well-established Constitutional plan. Following the jury acquittal of actor Robert Blake on two of the three charges against him, Los Angeles District Attorney Steve Cooley said not only that he disagreed with the jurors, but called the jurors who decided the case “incredibly stupid."

Blake’s attorney M. Gerald Schwartzbach, according to an Associated Press report, responded that Cooley’s ‘attack on the jurors was inappropriate and “small-minded.” ’ As indeed it was. It was also unethical, and an affront to America’s Constitutional order.

Standard legal ethics rules prohibit any attorney from subjecting discharged jurors to coercion or public humiliation. Comments such as Cooley’s not only violate those rules, but disparage the entire American legal system: if we cannot trust jurors to make well-informed decisions, then the result of any case is simply a crap-shoot. If Cooley’s confidence in the system he is such an integral part of is so poor, how can we have trust any convictions meted out by similarly “incredibly stupid” juries? Or are juries that agree with Mr. Cooley incredibly smart, and only those who disagree with him incredibly stupid?

Why should any citizen appear for jury duty, now that they know that the price for failing to rubber-stamp the State’s ambitions is to be publicly labeled “incredibly stupid” by elected officials? Such sour-grapes are not just unbecoming. They demonstrate a profound antagonism for the people and the system Mr. Cooley was elected to serve.

It is because of small-minded prosecutors like Steve Cooley that the constitutional safeguards that limit their power are so critical to the maintenance of a free country. Mr. Cooley may believe that no prosecution witness in the Blake case lied; the jurors who heard both sides of the case, however, had good reasons to disagree. They were hardly “incredibly stupid” for doing so. The jurors did their job and held the State to its burden of proof, just as the Constitution commands. If doing the job the Constitution sets out for them makes these twelve men and women “incredibly stupid,” must we not place Jefferson, Adams, Franklin, Hamilton, and the rest of the Founders in the dunce box as well?